The First Amendment: Mugged by Political Correctness

Thursday, October 04, 2018

“I wholly disapprove of what you say, and will defend to the death your right to say it.” —Voltaire

Our glorious First Amendment, bedrock of the US Constitution, heart of the Bill of Rights, guardian of our democracy, continues to be compromised by forces who share a philosophy inconsistent with our Founders’ vision of a free and open society. After all, there is a reason these luminaries placed this powerful expression of liberty, which includes a free speech clause, at the very top of our most important founding document.

The Suppression of Speech on Campuses

This obstruction has most prominently been expressing itself through a sordid mix of speech codes in a variety of settings, most notably college campuses and in the search engine and social media arenas, where the emphasis has trended toward content repression instead of transparency.

Numerous federal court cases have solidified and ratified free speech rights at public universities. In fact, the Supreme Court has held that First Amendment protections on campus are essential to preserving our democracy. As the Warren court wrote in its landmark 1957 Sweezy v. New Hampshire decision: “Teachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” However, as the Foundation for Individual Rights in Education (FIRE) has shown through exhaustive research and analysis, numerous restrictive codes across the country continue to prohibit speech based on content, viewpoint, and offensive language while also regulating the time, place, and manner of speech.

Disturbingly and increasingly, the freedom of expression that some of these actors of oppression seek is the freedom to pursue violence and desecration.

This is exceedingly unfortunate, as there was a time when our college campuses were the hallmark of inquiry, debate, and the free flow of ideas, with controversy welcome. In fact, in a bitter twist of irony, the University of California, Berkeley, the cradle of the free speech movement in the 1960s, is now in the vanguard of stifling the free expression of students and speakers with certain administrators, faculty, and students acting as a thought police cabal. Unfortunately, Berkeley is not alone, as this has become an all-too-familiar pattern at numerous institutions, both public and private. Disturbingly and increasingly, the freedom of expression that some of these actors of oppression seek is the freedom to pursue violence and desecration.

Granted, private universities are a different breed with constitutionally protected rights to organize themselves, within certain legal limits, as they see fit. However, in many cases, their hypocritical nature is too rich to ignore as they overwhelmingly hold themselves out as paragons of open inquiry and freedom of expression while simultaneously regulating the content and manner of speech.

Unrelenting pressure should be placed on these institutions, both public and private, to reform, particularly from Boards of Trustees and alumni. But alas, their priorities appear to rest elsewhere even as their beloved institutions sink further into an anti-Western civilization abyss.

Self-Regulation to Avoid Intervention

In the social media arena, what was once thought of as the last refuge for voices wanting to circumvent the doctrinaire bias of the establishment media has also succumbed to restricting speech. From Twitter’s shadowbanning to Google’s algorithmic sleight of hand and YouTube’s explicit censorship, these powerful and dominant media platforms are diligently suppressing certain speech that their admittedly and adamantly left-leaning curators subjectively view as offensive.

Indeed, these are private companies that are not constrained by the First Amendment and thus can act with impunity. However, with 80 percent of referral traffic coming from Google and Facebook, the sheer size, power, and influence of these behemoth platforms and their ability to control the flow of information mean the proclivity towards censorship could come under government scrutiny.

Thus, we are careening toward a classic, age-old battle pitting free speech advocates versus defenders of private property rights, with common law precedent based on “common carriage” principles arguably favoring the former.

In this connection, it is likely that if these companies do not demonstrate the ability to reform from within, they will be subject to regulation via the House Committee on Energy and Commerce and antitrust actions via the Federal Trade Commission (FTC).

In this connection, it is likely that if these companies do not demonstrate the ability to reform from within, they will be subject to regulation via the House Committee on Energy and Commerce and antitrust actions via the Federal Trade Commission (FTC). In fact, Attorney General Jeff Sessions recently announced he will be meeting with state attorneys general to gauge if these companies are “hurting competition and intentionally stifling the free exchange of ideas on their platforms.”

Longer term, market forces and new, innovative, and disruptive technologies such as blockchain, as opposed to government regulations and mandates, will likely result in today’s dominant players, with their preference for advertising dollars over security, ceding their influence. After all, this is the pattern of our uniquely American story, which historically has been emboldened by specifically the First Amendment and generally by the US Constitution.